ROLAND ROBINSON AND FENTONS v ROSEMARY LANDLESS [2004] UKEAT 0529_04_0212

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2004] UKEAT 0529_04_0212Case No Appeal No. UKEAT/0529/04Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
ROLAND ROBINSON AND FENTONSAPPELLANTROSEMARY LANDLESSRESPONDENT
Before
Mr Justice BurtonDate 2 December 2004
[1]APPEARANCES For the Appellant MR CHRISTOPHER JEANS QC & MR SIMON GORTON (of Counsel) Instructed by: Messrs Perkins Solicitors 1 King Street Manchester M2 6AW For the Respondent MR TERENCE RIGBY (of Counsel) Instructed by: Messrs Hill Dickinson 50 Fountain Street Manchester M2 2AS SUMMARY Sex Discrimination / Unfair Dismissal Appeal against finding of sex discrimination and constructive dismissal in favour of female salaried partner in firm of solicitors. Lack of clarity as to whether direct or indirect discrimination was found. If indirect, Applicant did not now support such claim. If direct, no sufficient findings, and no consideration of Respondent's explanations or as to continuing act. Constructive dismissal flawed by absence of findings and/ or incorrect approach and (on Applicant's cross-appeal) no reasons for finding of waiver. Remission of direct discrimination claim and constructive dismissal (on appeal and cross-appeal) to same Tribunal ( Sinclair Roche considered). THE HONOURABLE MR JUSTICE BURTON (PRESIDENT) This has been an appeal by the Respondent (Roland Robinson and Fentons ("the Firm")), a firm of solicitors, against the unanimous decision of the Employment Tribunal at Leeds in favour of the Applicant Mrs Rosemary Landless, a salaried partner and wife of the former senior partner of the Firm, after a hearing lasting eight days in February 2004, in Reasons sent to the parties on 26 April 2004. The decision, at the outset of the Reasons, read as follows:
"(i) The Respondent discriminated against the Applicant on the grounds of her sex. (ii) The Applicant was unfairly constructively dismissed by the Respondent."
[2]The Applicant was represented at the Tribunal and before us by Mr Terence Rigby of Counsel, and the Firm was represented before the Tribunal by Simon Gorton of Counsel and before us by Christopher Jeans QC leading him.[3]The Applicant's claims for unfair constructive dismissal were based upon her acceptance of repudiation of her contract of employment as salaried partner, by her resignation on 19 April 2002. Her case on sex discrimination was originally a claim only of direct discrimination, arising out of the Respondent's failure or refusal to appoint her as an equity partner. An alternative case for indirect sex discrimination was added at the beginning of the hearing. The Tribunal explain how this came about at paragraphs 5 to 7 inclusive of its Decision, and the amendment for which it granted permission was as follows (paragraph 7):
"If, which the Applicant denies, the Respondents applied a condition or requirement or a provision, criterion or practice that to be made an equity partner a solicitor must not be related to an existing partner to the Applicant between 1988 and May 2002, it is contended that they indirectly discriminated against her under s1(1)(b) of the Sex Discrimination Act 1975."
[4]As is clear from the words used by the Tribunal in recording its Decision at the outset of the Reasons quoted in paragraph 1 above, the Tribunal did not record whether the discrimination which it found was direct or indirect or both. In paragraph 89 of the Decision the Tribunal stated:
"We found it very difficult to analyse whether the Respondent treated the Applicant less favourably because she was a woman or whether it was because she was associated with Mr Landless"
. Then in paragraph 90 it said "Dealing with the argument put forward that the Respondent had a policy against partners being married to other individuals, we consider that if the Applicant's claim is dealt with as an issue of marital discrimination, then it must be a question of direct discrimination. Issues of justification are therefore not relevant to it. If however, the "Partnership in Partnership" policy is treated as giving rise to an indirect discrimination claim, the requirement or condition applied is that a prospective partner must not be in a relationship with an existing partner". The Tribunal continues in paragraph 91:
"We are then required to consider the question of justification", and it does so, in that and the following paragraphs. In paragraph 102, the Tribunal concludes "accordingly we did not consider that the Respondent's treatment of the Applicant contrary to the Sex Discrimination Act 1975 in any sense ceased in 1998, 1999 or 2001."
[5]So far as concerns the claim for unfair constructive dismissal, the Applicant's primary claim was that she was entitled to treat herself as constructively dismissed by virtue of the contents of the Firm's letter to her husband in December 2001 seen by her on 22 January 2002. The Employment Tribunal found that "we considered that such breach as took place in the letter of December to the Applicant's husband was waived by the Applicant" (paragraph 104 of the Decision). The Employment Tribunal also did not find the Firm's conduct in the last meeting between the Firm and the Applicant on 20 March 2002 to be repudiatory:
"104 …We did not find the Respondent's conduct in the meeting of 20 March to be repudiatory of the Applicant's contract of employment. We did however find on looking at the Applicant's letter of resignation [dated 19 April 2002] that it was quite clear that the motivating factor was the failure to allow the Applicant to progress to become an equity partner throughout the course of her career. The Respondent discriminated against the Applicant on the grounds of her sex and marital status. We found that was an ongoing breach of a fundamental term of her contract of employment and one which is incapable of waiver and which is continuing. That is the implied term not to discriminate against her on the grounds of her sex. 105 Accordingly, we found that she was entitled to resign when she did in April 2002, having acted within one month of the meeting at which it became clear that the Respondent would continue to maintain that she should have to pay for an equity partnership. That was the position of those who were prepared to accept her at that time. It may be that there were others who would not have accepted her, even at that time."
[6]The appeal was based in the Notice of Appeal upon a number of grounds, but the primary grounds can be summarised as follows: 6.1 As there was no finding of direct sex discrimination (as the Firm assumed in the light of the apparent absence of any express finding to that effect and the treatment of it set out in paragraph 4 above), the finding with which the Firm sought to grapple was that of indirect discrimination. This was based upon the existence of the policy prohibiting a 'partnership within a partnership', which might have been better described as a 'firm within a firm', i.e. by reference to the power blocks that could be built up if there were separate alliances, caused by relationships, within a partnership. So far as this was concerned, the grounds were: 6.1.1 There was no express finding that there was such a policy. It was described by the Tribunal in paragraph 94 as follows:
"Our finding was that the "
Partnership in partnership" policy was a flimsy construct. It may have been an idea supported by some partners in 1994 and retained by inertia thereafter until 2000. It does not appear to have been approved as a formal statement of all the partners' position at any time. It has been used to justify an unreasonable refusal of advancement to the Applicant maintained over many, many years by the Respondent." Nor it was submitted, was there any adequate addressing of the Firm's justification for the policy. 6.1.2 There was no dealing with the fact that the impact of the policy, so far as concerned the Applicant, came to an end in or about summer 2000, when her husband gave notice of his intention to retire from the partnership. 6.1.3 There was no dealing with the fact that after that date, on the evidence - as to which the Employment Tribunal made no findings, although invited to do so in a summary of factual issues prepared by Mr Rigby, and agreed to by Mr Gorton, to which we will refer further below - there was or were allegedly an offer or offers of an equity partnership to the Applicant in 2000 or 2001. Such offer or offers were on the basis of her making payment for it on the same terms as, or better terms than, all those (male) partners who were at any material time offered an equity partnership, with the exception of two (Mr Slater and Mr Castle) whose situation the Applicant expressly accepted during the hearing to be "separate and distinct from hers" (paragraph 98). 6.1.4 There was no adequate dealing with the case that, particularly as the 'policy' had come to an end in 2000, there was no continuing act such as to enable complaint to be made about the policy in June 2002, when the Originating Application was issued. It was accepted and found by the Employment Tribunal (paragraph 65) that at the meeting on 20 March 2002 "she was told that she could have a full partnership upon the normal terms, namely payment". There was no consideration by the Tribunal of any other basis for extending the time period than continuing act; i.e. no addressing of the just and equitable provisions. 6.2 So far as concerned the case of constructive dismissal, the Firm relied upon the fact that, given the Tribunal's conclusion as to waiver of the December 2001 letter and as to no repudiatory conduct at the meeting of 20 March, there could be no constructive dismissal in the light of the findings in paragraph 65 and 104 quoted above. The Firm pointed to the fact that, while discussing the law as to constructive dismissal in paragraphs 85 to 87 of the Decision, while referring to Western Excavating Ltd v Sharp [1978] ICR 221 , the Employment Tribunal also referred to Garner v Grange Furnishing [1977] IRLR 206. The Firm submitted that by referring to Garner the Tribunal was perhaps relying upon a discredited series of authorities, which downplayed the requirement for repudiatory breach from conduct going to the root of the contract to conduct that was simply unreasonable. In that context, it is suggested, must be seen the comments of the Tribunal (against the background of its finding of waiver, as referred to, and of an offer of an equity partnership on the normal terms, namely payment), such as "we could not see why … the Respondent could be entitled to … ask her to pay" (paragraph 98). The summary at paragraph 12.1 of the Notice of Appeal invited the Employment Appeal Tribunal to "substitute a finding that [the Applicant] was not constructively dismissed, on the basis that [her] comparator [a male partner, Mr Newell] was treated the same, and thus there was no repudiatory breach of contract; and similarly she was not the victim of sex discrimination, because her treatment was no less favourable than that of her comparator". There was a cross-appeal by the Applicant (which it indicated was conditional, in the sense it would not be pursued if the Firm's appeal were not successful) against the finding by the Tribunal of waiver: and it was further pointed out by the Applicant that, the Tribunal having found that the repudiation of the Applicant's contract of employment and her acceptance of it amounted to unfair dismissal, it "ought logically to have also found that there was a breach of contract in addition" – this we take to mean wrongful dismissal.[7]In proposed additional grounds of appeal, the Firm sought to add to those grounds alleged further errors of law not previously covered by the Notice of Appeal, as to which the only explanation seems to have been that they had occurred to new leading Counsel, Mr Jeans QC, when he was recently instructed. They fell into two categories:7.1 Indirect Discrimination7.1.1 The amendment for which the Employment Tribunal granted leave, as set out in paragraph 7 of its Decision, has been quoted by us above. It ascribed the "partnership within a partnership" policy firmly to the principle that an aspiring partner must not be related to an existing partner. When the Tribunal came to consider, and, as the Firm believed, find, that there had been indirect discrimination, but in any event when it came to considering the issue of justification, the Tribunal stated, contrary to the case for the Firm and inconsistently with the amendment that the Tribunal had allowed, that (paragraph 90) "the requirement or condition applied is that prospective partner must not be in a relationship with an existing partner". By so defining and addressing the policy, the conclusion was then reached by the Tribunal that (paragraph 90) "All the existing partners are male. Of the aspirant partners, only those who were female would be affected by that requirement and a detriment is therefore caused to the Applicant by her inability to comply with that requirement or condition". The Firm's case had been, and was backed up by the example given in evidence of the brother-in-law of an existing partner at the time, a Mr Keefe, that its policy was "gender neutral" in that, even leaving aside the question of homosexual cohabitees (which the Tribunal does not appear to have addressed), relatives, such as mothers, fathers, sons, daughters, siblings, would be no more nor less likely to be male than female. The Tribunal neither addressed the evidence nor the argument on the basis of the case as put by the Firm, and indeed in accordance with the Applicant's own amendments.7.1.2 In any event, the Firm submitted, whether on the basis of the correct policy, and the amendment, or the policy upon which the Tribunal alighted in paragraph 90 of its Decision, the Tribunal erred in law in relation to its approach, by reference to the issue of whether the policy affected a "considerably smaller" proportion of women than men, since, as it was put in the proposed amended Notice of Appeal at paragraph 12b "virtually all of the relevant pool of women could comply with it and were not detrimentally affected by it": the Firm sought to rely on Rutherford v Secretary of State for Trade and Industry (No 2) [2004] IRLR 892 and Coker and Osamor v Lord Chancellor [2002] IRLR 80 .7.2 Constructive Dismissal 7.2.1 The Firm sought to add a plea that the repudiatory breach relied upon was bad in law, because, as a change of status from salaried partner (employee) to equity partner would have entailed the termination of the contract of employment in any event, it was submitted that it could not amount to a breach of the contract of employment "to omit to take a step which would entail the termination of that contract of employment and the agreement of a wholly new contract which would not have been a contract of employment" (proposed ground 11A). 7.2.2. The Firm sought also to contend that the "implied term not to discriminate against her on the grounds of her sex" set out in paragraph 104 of the Decision, which was said to have formed the basis of the repudiatory breach, was not an implied term known to the law, and, by reference to Johnson v Unisys [2001] ICR 480 was said to be "repugnant to the statutory scheme under the Sex Discrimination Act 1975 whereby sex discrimination in relation to employment law partnership is remediable only in the employment tribunal subject to the limitations set out in the statutory scheme".[8]In the light of the very full skeletons ably prepared by both Counsel in this case, it was not long before we called upon Mr Rigby on behalf of the Applicant, as Respondent, to defend the Notice of Appeal as presently constituted, without at that stage having made any decision on the issue of permission to amend, and in the light of the apparent strength of the Firm's case even without such amendments, on the issues of indirect discrimination and constructive dismissal. It then became apparent, fairly early in the course of Mr Rigby's submissions for the Applicant, that he did not support any finding of indirect discrimination. The Applicant accepts that the impact of the alleged policy did indeed come to an end in summer 2000, and with it any case of indirect discrimination based upon it. We did not therefore need to consider any of the grounds argued by the Firm in respect of indirect discrimination any further, whether the unamended or the proposed amended grounds. The Applicant asserts that the Employment Tribunal's finding was of direct discrimination. Indeed Mr Rigby submits that the decision at the outset of the Reasons, which we have quoted in paragraph 1 above, should in fact be read as if the conclusion of the Tribunal were that "the Respondent directly discriminated against the Applicant on the grounds of her sex and did not indirectly discriminate " (our underlining). Mr Rigby consequently seeks to support and justify a finding of direct discrimination alone, and not one of indirect discrimination; and he further conceded that if the appeal were otherwise successful and were remitted, he would not seek to support, on such remission, any case of indirect discrimination. It has thus been necessary for us to consider the issue of direct discrimination, but with all arguments available on such issue, as will appear. It was agreed that no pleading points would be taken, since all matters were so fully and clearly before us. Strictly no doubt it could be said that the Firm did not expressly assert that there was no finding of direct discrimination, and set out what its case would be if there were – other than insofar as it makes general complaints of deficiencies in the Employment Tribunal's decision in paragraph 19 of its Notice of Appeal (including pointing out that the Tribunal must have rejected (because it nowhere addressed) the Applicant's "principal factual case … that two partners … had set their face against [the Applicant] being admitted to equity because she was a woman, alternatively because she was a married woman" (paragraph 19.5 of the Notice of Appeal). But then it made the assumption set out in paragraph 6.1 above. Equally it could be said that the Applicant, although there was a brief reference in the Answer (paragraph 3(iii)) to what it referred to as "the Tribunal's reasoning on the complaint of direct sex discrimination", did not raise it by cross-appeal, in case there had been no such finding. Finally it could be said that the Appellant did not respond to that Answer, insofar as there was such (brief) assertion of a conclusion as to direct sex discrimination, to make it clear why there was not, and/or why, if there had been, it would not have been supportable. It was however quickly and helpfully agreed on both sides that we should set aside such questions of pleading, and resolve on this appeal whether there was a sufficient finding of direct discrimination, and, if so, whether there was an error of law in the approach of the Employment Tribunal.[9]As to the constructive dismissal, we dealt with the appeal on the basis of the unamended grounds (and the cross-appeal) as set out in paragraph 6.2 above, without considering the proposed new grounds set out in paragraph 7.2 above. We did not refuse, but did not in the event need to consider, permission to amend. If the matter were remitted, such grounds could be raised then. Direct Discrimination[10]It is worth reiterating what we have already recited, by reference to paragraph 12.1 of the Notice of Appeal in paragraph 6.2 above, namely what it is that the Tribunal did not find. The Tribunal did not find, as the Applicant invited it to find, that there was direct sex discrimination of the simple kind, namely that one or more of the partners in the Firm had a settled intention not to cause or allow the Firm to take on a woman partner. As has been discussed in paragraph 6.1.3 above, there was no finding by the Tribunal in relation to a number of the factual issues which both Counsel invited it to deal with, and we shall return below to some of those issues. So far as a finding of direct discrimination itself is concerned, we have already set out in paragraph 4 above the passages in paragraphs 89 and 90 of the Decision in which there is express reference to direct discrimination, and in particular the fact that it was only in terms of conditionality (" if the Applicant's claim is dealt with as an issue of marital discrimination, then it must be a question of direct discrimination") that the words are addressed at all. Mr Rigby submits that, nonetheless, the only possible construction of paragraphs 89 to 102 of the Decision is that there was in fact a finding of direct discrimination, not least because there is the reference in paragraph 94 of the Decision, quoted in paragraph 6.1.1 above, which reflected the Tribunal's understanding that the "partnership in partnership", whether a flimsy construct or otherwise, ceased to have impact in 2000, so that it must be that the Tribunal was not finding indirect discrimination. We are not satisfied by that, not least because on the one hand there is in paragraphs 90 to 94 an apparent consideration of the issue of justification, which as the Tribunal itself recognises in paragraph 90 only arises in respect of indirect and not direct discrimination, while there is no, at any rate explicit, addressing of the necessary questions where there is to be a finding of direct discrimination. In paragraph 83 of the Decision, the Tribunal addresses the issue of burden of proof. It makes a short citation from Barton v Investec Henderson Crossthwaite Securities Ltd [2003] IRLR 332 . Unfortunately the only passage which it cites from Barton is the passage which has subsequently been disapproved, or at any rate replaced, by the further consideration of the Employment Appeal Tribunal (following on from University of Huddersfield v Wolff [2004] ICR 828 ) in Chamberlin Solicitors v Emokpae [2004] IRLR 592 . The correct question is not, as set out by the Tribunal, that "to discharge the burden it is necessary for the Respondent to prove that the treatment was in no sense whatsoever on the grounds of sex (or marital status)" but (paragraph 38 of Chamberlin ) "to discharge that burden it is necessary for the Respondent to prove, on the balance of probabilities, that the treatment was not significantly influenced by grounds of sex (or marital status)". There would have been a real risk, if the Tribunal had explicitly applied the Barton test to the question of direct discrimination in this case, assuming that it had reached a sufficient conclusion as to direct discrimination that the burden of proof had passed, that it would have applied the wrong test. But in fact, notwithstanding paragraph 83 of the Decision, and perhaps (contrary to Mr Rigby's submission) because the Tribunal did not reach a conclusion on direct discrimination, it does not even address the burden of proof on the Barton basis, so far as can be seen.[11]As is clear from Barton , as amended by Wolff and Chamberlin , and as is well established now by Zafar v Glasgow City Council [1998] ICR 120 , and Bahl v The Law Society [2003] IRLR 640 (EAT) and [2004] IRLR 799 (CA), it is necessary, once a tribunal has concluded that there is prima facie unfavourable treatment on grounds of sex (or marital status), that it must address the explanations put forward by the Respondents, even if they be explanations which could be described as otherwise unreasonable or unacceptable, to see if a non-discriminatory explanation for the treatment is established.[12]It may be, notwithstanding that this is not said by the Tribunal, and notwithstanding that the exercise apparently clearly starts as one of establishing the existence or otherwise of justification as from paragraph 90, that this is what the Tribunal is doing in the following paragraphs up to paragraph 102. But if so there appears to us to be quite clearly an inadequate consideration of those explanations.[13]The first explanation relates to the period, up to mid-2000, when the Respondents relied upon the partnership within a partnership policy. Because of the failure or misunderstanding referred to in paragraph 7.1.1 above, the Tribunal does not address the actual explanation put forward by the Respondent, and its alleged "gender neutral" basis. There are no findings by the Tribunal in relation to the case of Mr Keefe, referred to in paragraph 7.1.1 above (as to which Mr Rigby submits that the Tribunal, if it had made findings, would have been dismissive of the evidence) nor as to the position of the wife of another partner or ex-partner Mr Cobain. Three of the factual issues which were submitted for resolution by Counsel in Mr Rigby's summary of issues (numbers 2, 3 and 4) would have been of relevance to this question, but were not addressed.[14]The second explanation by the Respondent related to the period subsequent to mid-2000, when, on any basis, reliance on the alleged policy was no longer placed. As to this period, the Respondent's case was that it was in fact willing to offer an equity partnership to the Applicant, but that this would have been on terms of payment, as discussed in paragraph 6.1.3 above. The Tribunal recorded in paragraphs 20, 21, 22, 23, 24, 25, 26, 28 and 30 the occasions when nine (male) partners became equity partners, all on the basis of paying 50% of the value of their share of profits, and then earning the other 50%, without further payment, over a period of time: the only exception being, as referred to in paragraphs 27 and 29, Messrs Slater and Castle, whom, as set out in paragraph 6.1.3 above, the Applicant accepted to fall into a different category. It was thus the position that every relevant other partner had had to pay 50% of the value, and then wait for the balance. The Tribunal made no findings as to the position between mid-2000 and March 2002, when it did make the finding referred to in paragraph 6.1.4 above. In fact, as appears from paragraph 65 of the Decision, the offer which the Tribunal in terms found had been made of a full partnership on "the normal terms of payment" was better than that made to the other male equity partners, because she was to become a full equity partner immediately on the basis of payment of a half share i.e. without having to wait the further period for her full share to accrue, as had the others. Mr Rigby submits that in fact even at the meeting on 20 March 2002, no such offer was made, but it seems clear to us that the only sensible interpretation of paragraphs 65 and 104 is of a finding that such offer was made, and it is consistent with the notes of that meeting (at paragraphs 12 and 30), taken by Mr Evans, which it appears, from paragraph 65 of the Decision, the Tribunal accepted as broadly accurate.[15]Leaving aside the question of the 20 March 2002 meeting, as to which there were the findings to which we have referred, the Respondent's submission is recorded in paragraph 70 of the Decision as having been that "following the retirement of Mr Landless, the 'partnership in partnership' argument was no longer a problem. Terms available were that the Applicant could purchase a full equity partner[ship] at the equivalent of a half share". There was also a handwritten letter by the Applicant, which it was agreed was written by the Applicant in or about November 2000, in which the Applicant, after recording that she understood that her "request to be considered for a full equity partnership on the same terms as those offered to Robert Castle has been refused" [Mr Castle being one of those partners whom subsequently at the Tribunal she was to accept could be distinguished from her position], she concluded "I am, therefore, left with no alternative, after a great deal of thought, but to withdraw formally my application". This letter is not addressed by the Tribunal, and it appears to us that it was on any basis necessary to do so if the Tribunal were to conclude that, notwithstanding such letter, the Firm was discriminating against her on grounds of sex or indeed marital status, then or thereafter. Mr Rigby himself clearly appreciated as much because of his inclusion of that issue among others in his Summary Document, to which we have referred. The following significant factual issues were listed by him in that agreed Summary and in the event not dealt with by the Tribunal:
"12 Did M Landless indicate in 2000 that he intended to retire in the summer of 2001? 13 Did the Applicant apply for an equity partnership in the spring of 2000? If so on what terms? 14 Did the Applicant apply in about October 2000 for an equity partnership on the same basis as Robert Castle? 15 Why were those applications rejected? 16 Was an offer made to the Applicant by the partners in October/November 2000 of an equity partnership [full or half] on payment of goodwill? 17 Why did the Applicant withdraw her request for an equity partnership in November 2000? 17a Did the Applicant understand from October/November 2000 that she could have a full equity partnership but on the basis that she pay for the goodwill, i.e. half share payment for full equity? 24 Was an offer of partnership made to the Applicant through Michael Landless in August 2001? 25 If so, was it communicated to the Applicant and did she reject the offer?"
[16]Consideration of these issues, and of the generality of events relating to the possibility of an equity partnership after summer 2000 and up to and including March 2002 was necessary, not only because of the obligation of the Tribunal to consider the Respondent's explanations, but also because of the question of limitation. It is plain that the Tribunal was addressed on the issue of continuing act, as well as just and equitable extension. As we have set out in paragraph 5 above, the Tribunal concluded that there was no repudiatory conduct, at any rate which the Applicant was entitled to accept by her resignation, arising out of either the events of December 2001 and January 2002 and the letter, or the meeting of 20 March itself. The finding by the Tribunal is of there having been a "failure to allow the Applicant to progress to become an equity partner throughout the course of her career". However, subject always to whether the partnership within a partnership policy provided a good, or, at any rate, non-discriminatory explanation, it could be said that discrimination, if discrimination it was, came to an end with the end of that policy, and the period of time in respect of which the Tribunal was required in those circumstances to give an especially careful look, was the period between summer 2000 and April 2002; and if the discrimination had ended in mid-2000, then some basis for extending the time would have to be found. The Tribunal's finding in paragraph 102 is simply that "we did not consider that the Respondent's treatment of the Applicant contrary to the Sex Discrimination Act 1975 in any sense ceased in 1998, 1999 or 2001. We found that it continued up to the time of her resignation". Yet there are no findings in relation to the issues we have set out above. The analysis that is set out in paragraph 98 is the nearest the Tribunal comes:
"But even if it is correct that the partnership had accepted by 2001 that the Applicant should be offered a full equity partnership on terms that she paid a half share, had the discrimination against the Applicant as a woman - and a married woman, married to another partner – ceased at that point? We concluded that it had not, and that it continued, because of the failure to put the Applicant on the normal track to equity partnership in the late 1980s had created an anomalous situation for her. We could not see why, accepting that the Applicant had achieved the income level of a half equity partner, the Respondent could be entitled to then ask her to pay to have that partnership converted in financial terms into a full equity partnership. No one else paid for the second half of their equity share. They may have earned over a period of time progression from 80% to 100% of a full partner share, but the Applicant had been delayed and subjected to detriment in her career progression in 1987 until 2001. No sophisticated comparison is necessary to make the clear finding that the Applicant could not at that stage be given equal treatment by requiring her to pay £25,000 to rectify her anomalous position and become a full equity partner."
[17]This comes uncomfortably close to a discussion not of discrimination itself but of the consequences of discrimination (see Barclays Bank plc v Kapur [1989] IRLR 387 at 392). It is difficult to see how the Tribunal could make a reasoned finding in this regard without:
"(i) addressing in detail the factual issues which Counsel invited them to address: (ii) addressing the Respondent's explanation as to the inappropriateness of making any greater exception for the Applicant by reference to the treatment of all other partners than the Firm was in fact prepared to make."
[18]In any event the kind of discussion set out in paragraph 98 of the Decision is as capable of being criticised as falling foul of the requirement, underlined in Zafar , for caution by the Tribunal in concluding that conduct which it may regard as unreasonable is necessarily discriminatory, as in the context of constructive dismissal, as discussed in paragraph 6.2 above.[19]Without such analysis, we are satisfied that the Tribunal did not only not complete its job in relation to consideration whether discrimination was established, by reference to the Respondent's explanations, but that it also did not adequately, and with sufficient findings and reasons, carry out its task in relation to the existence of a continuing act, such as to establish that the complaint in June 2002 was in time: and, as discussed in paragraph 6.1.4 above, the Tribunal did not address the alternative basis of just and equitable at all. We are not satisfied that the Tribunal made sufficient findings of fact, or did in fact complete its task, in relation to making any conclusion on direct discrimination, and if so whether any such direct discrimination was still in time to be the subject of an Originating Application in June 2002.[20]We turn to constructive dismissal. Once again we record that the Tribunal did not make the findings for which the Applicant would have hoped, in order to justify her case for constructive dismissal. It found that the Applicant was not entitled to rely upon any repudiatory breach by reference to the December 2001 letter. It further found that nothing at the 20 March 2002 meeting amounted to repudiatory conduct (and indeed made the findings as to the making of an offer on normal terms set out in paragraph 65 of the Decision). We are satisfied that in those circumstances, the finding that the Tribunal did make in paragraph 104 is as insufficiently supported by reasons and findings of fact, by reference to the absence of such findings with regard to the events between summer 2000 and March 2002, as we have concluded in relation to the case of direct sex discrimination in the same period. We leave aside the two proposed amendments to the Notice of Appeal referred to in paragraph 7.2 above. We make the assumption that prior to summer 2000 either(a) the partnership within a partnership policy was discriminatory or(b) being a flimsy construct, it did not exist at all. Even on that basis, it is difficult to see how the conduct of the Firm - if that is what occurred - in only being prepared to offer an equity partnership on terms of payment for 50% of its value (as for all material other partners), but without a built in delay before 100% entitlement (more favourably than for such partners), would, at any rate without explanation, be repudiatory of the contract of employment.[21]Nor is it easy to see how, if that was the repudiatory conduct, then the repetition or reiteration (on the Tribunal's own findings) of such conduct, at the meeting on 20 March 2002, was not itself repudiatory, contrary to the Tribunal's finding. We are satisfied that there are insufficient findings by the Tribunal to justify its conclusion that there was repudiatory breach, as set out in paragraph 104 of its Decision.[22]We are not invited to substitute our own conclusion, nor would it be appropriate for us to do so. We are satisfied that the Tribunal's Decision should be set aside, and that the issues of direct discrimination (not indirect discrimination) and constructive dismissal should be remitted. We also conclude, and Mr Jeans QC did not seriously oppose this, that on the Applicant's cross-appeal the issue of waiver in relation to the letter of December 2002 should also be remitted. There is, contrary to the well-established principles in Meek v City of Birmingham District Council [1987] IRLR 250 and English v Emery Reimbold and Strick Ltd [2003] IRLR 710 , quite inadequate reasoning for the Tribunal's conclusion in paragraph 104 of its Decision that:
"In order to treat herself as constructively dismissed as a result of that letter, the Applicant had to act promptly. Nothing further was heard, however, until the meeting of 20 March. We considered that such breach as took place in the letter of December to the Applicant's husband was waived by the Applicant."
[23]We turn then to the issue of whether the remission should be to the same or a fresh Employment Tribunal. we have considered and applied the principles in Sinclair Roche and Temperly v Heard [2004] IRLR 673, which it has not been suggested to us by either side are inappropriate. The Applicant, through Mr Rigby, urged us, if the appeal were successful, to remit to the same Tribunal. This is of course largely on the basis of the time that has already been spent on this case – eight days of evidence, the cost and inconvenience of starting again, and the delay this would cause. The Firm, through Mr Jeans QC, emphasised the errors in relation to the Tribunal's Decision which have not only been the subject of criticism by both sides, but, assuming that the appeal (and indeed the cross-appeal) were to be successful, this Tribunal itself would have identified. Mr Jeans QC submits that it is neither fair not just nor sensible to expect this Tribunal to be willing or able to come to a different conclusion if the matter were remitted to it, and that it would thus be engaged in an exercise of working back to the same conclusion which it had already reached.[24]We take into account those submissions and draw assistance from the guidelines in Sinclair Roche . We conclude as follows:24.1 When the matter goes back on remission, it will not now include the issue of indirect discrimination, in relation to which we are satisfied the greatest muddle or misunderstanding occurred. As set out in paragraph 7.1 above, we are satisfied that the Tribunal was led into error, did consider the wrong policy, and did not address correctly the relevant issues on indirect discrimination. But the Tribunal's task on remission will strip out all questions of indirect discrimination, and will address the question of direct discrimination, no doubt taking it in two bites, namely the period prior to summer 2000 (insofar as found to be relevant so far as limitation is concerned) and the period between summer 2000 and April 2002.24.2 We find it disappointing that the Tribunal did not address the summary of issues which was presented by Mr Rigby and which, so far as the factual issues are concerned, was agreed between the parties. Of course it is not necessary for a tribunal to accept what it is given by Counsel, and, if it forms the view that such summary of issues is unhelpful, it can disregard it and go its own way. We do not understand that the Tribunal in fact rejected the summary of issues. In any event, even if it was not satisfied with the format, we have already indicated that we do not see how the Tribunal could reach a satisfactory conclusion in this case without in some form making findings in relation to at least a number of the issues there raised. But it is quite clear now, on remission, particularly in the light of the guidance in this judgment, that the Tribunal will know what factual issues it must address.24.3 Although the Tribunal, in our judgment, clearly made errors, particularly in relation to the matters in the above two subparagraphs, we are satisfied that its Decision was not wholly flawed. Effectively our conclusion is, as it was in Sinclair Roche , that, at best, this Tribunal has only got to halfway, so far as findings of direct discrimination are concerned. If the Tribunal is to be satisfied that there was sufficient of a case of unfavourable treatment on grounds of sex or marital status (always bearing in mind the question of limitation) to shift the burden, then it must turn to deal in terms with the Firm's explanations. We are satisfied this Tribunal did not do so, and it now must do so.24.4 We are satisfied that there are no fundamental factual findings that this Tribunal is going to need to feel embarrassed about, if, on hearing further evidence and/or submissions, it were now to come to a different, or an opposite, conclusion. The only matter upon which we were specifically addressed by Mr Jeans QC is by reference to the words used by the Tribunal in paragraph 94 in relation to the partnership within a partnership policy, that it was a "flimsy construct". We do not read that as being a finding, hostile to the good faith of the Firm, that it is something that has been made up or invented for the purpose of a defence to discrimination. We conclude that what is meant is that the Tribunal was not satisfied as to its validity. Particularly as it appears to have been addressing the wrong policy, even that finding is one which the Tribunal may find itself able to reconsider. There is however, in our judgment, no inevitable stance taken against the Firm by way of doubting of its credit which might make it difficult for this Tribunal to reconsider or ought to leave any rational feeling of lack of confidence in the minds of the Firm.[25]We are very concerned at the prospect of this case starting again with the attendant cost and delay. A hearing before the same Tribunal, with the ability for both parties to call any further evidence (as to which notice by way of supplementary witness statements should clearly be given, under direction from the Tribunal) and further submissions, will achieve the most just result. Reference was made in Sinclair Roche at paragraph 46.6 to the professionalism of employment tribunals. It is indeed in our own recent experience that tribunals after a successful appeal against their decision and a remission to the same tribunal, have been willing and able to change their minds and indeed reverse their decision. We are not saying that that will necessarily be the result in this case, but that it at any rate might be the result must be very firmly borne in mind by this Tribunal.[26]For these reasons we conclude that the appeal, and the cross-appeal in respect of the issue of waiver, should be allowed and remitted for hearing to the same Tribunal.